Whittenbury v Vocation Limited (No 2)

Whittenbury v Vocation Limited (No 2) involved a dispute regarding the powers of liquidators to assert and waive legal professional privilege. The matter was heard in the Federal Court of Australia, where the liquidators of Vocation Limited sought discovery of certain documents from PricewaterhouseCoopers (PwC). The liquidators argued that legal professional privilege could be claimed over the documents in question. PwC, on the other hand, contended that Vocation Limited had waived any privilege over the documents. The primary legal issues before the court were whether the liquidators had the authority to assert or waive legal professional privilege on behalf of the company and whether any privilege had indeed been waived.

The court considered the statutory powers and duties of liquidators under the Corporations Act 2001 (Cth) and the implications of any decision to assert or waive privilege. Sackville J noted that liquidators must act in good faith and consider all available options, including the potential impact on the liquidation process. The court also examined the Hurwood Affidavit, which was intended to support a claim of privilege, and noted that no such claim had been formally made by the liquidators. Consequently, the court refused leave for Vocation Limited or the non-executive directors to rely on the Hurwood Affidavit.

Turning to the issue of costs, the court noted that while PwC had been substantially successful in its application for discovery, the outcome was mixed. Vocation Limited had already conceded on approximately 25% of the documents in dispute, and PwC had abandoned its challenge over two-thirds of the remaining documents. The court found that the appropriate order was for each party to bear its own costs, given the mixed outcome of the proceedings. The court also highlighted the importance of the time and resources expended by both parties in reaching the current position.

The court's final orders required the parties to confer and provide an agreed minute of order reflecting the reasons in the judgment, or if no agreement was reached, brief written submissions as to the appropriate orders to make. This directive aimed to ensure that the parties could finalise the procedural aspects of the case in a manner that aligned with the court's reasoning and the principles of fairness and proportionality.